Due Process Violation

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Deshawn J. Driver

Case No.: 2018AP870-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Due Process Violation

Deshawn J. Driver appeals a judgment of conviction for armed robbery and an order denying his postconviction motion. Driver argues that he is entitled to a remand for a restitution hearing before a different judge. At the start of Driver’s restitution hearing, the trial court told defense counsel on the record, before hearing testimony from any witness, that the victim’s word “is more credible than your client’s words[.]” Later in the hearing, when defense counsel told the court that Driver and his co-defendant did not see “a lot” of the items the victim claimed were in the stolen car, the trial court said it would “take that without their testimony” and added, “That’s why I didn’t give them a chance to say it.” Driver argues that these statements constituted objective bias and violated his constitutional due process right to an impartial tribunal.

Based on the record, we conclude that Driver is entitled to a restitution hearing before a different judge. A defendant may rebut the presumption that a judge acted fairly, impartially, and without prejudice “by showing that the appearance of bias reveals a great risk of actual bias.” State v. Herrmann, 2015 WI 84, ¶3, 364 Wis. 2d 336, 867 N.W.2d 772. See also State v. Goodson, 2009 WI App 107, ¶¶1, 13, 18, 320 Wis. 2d 166, 771 N.W.2d 385 (holding that defendant was entitled to a new hearing before a different judge because “prejudging” the defendant’s sentence showed objective bias).

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.